Capitol Perspectives: Legislative efforts vs. the Constitution

March 5, 2021 7:30 am

Senate Majority Leader Caleb Rowden, R-Columbia (photo courtesy of Missouri Senate Communications).

This year, an effort to provide financial help for parents to send their kids to alternative schools could run afoul of two very clear provisions of the state’s Constitution.

The issue arises from a bill that started out as a simple idea to give home-schooled kids the right to participate in public school sports.

But it got bloated by the Senate which added tax breaks for parents sending their children to private schools, expansion of where charter schools can operate, Bible studies, school transportation funding and more.

It’s an example of a common tactic in the legislature to throw everything but the kitchen sink onto a bill moving through the process.

But article III, section 23 of the Constitution provides that “no bill shall contain more than one subject which shall be clearly expressed in the title.”

In 1994, Missouri’s Supreme Court struck down a bill that began as a measure for absentee voting, but ended up with another, completely different subject to let Boone County become a charter county.

In response, legislators have tried to get around the “Hammerschmidt” single-subject decision by amending the title of a bloated bill to include the unrelated issues.

The title is one sentence at the top of the bill describing its subject.

The thought was that the body of the bill could cover any number of unrelated issues so long as the subjects or statute sections were contained in the title.

However, that approach violates another constitutional restriction, article III, section 21 that “no bill shall be so amended in its passage through either house as to change its original purpose.”

In 2006 and 2012, the state’s highest court struck down laws that changed the title of a bill after its introduction.

The 2012 decision involved a 2010 Senate bill with a title originally limited to “purchasing, printing and services for statewide elected officials.”

But lawmakers added a number of unrelated issues converting it into an omnibus ethics bill dealing with lobbyists, campaign financing and gubernatorial nominee disclosure requirements.

It even included a requirement that the governor’s administration provide a key to the Capitol dome to every legislator.

To cover that expansive number of different issues, the legislature simply amended the title to include “twenty-six new sections relating to ethics.”

In 2012, the Supreme Court threw out that bill with a decision that put enormous weight on the bill’s original title in defining what was the original purpose.

The decision echoed an earlier 2006 decision that “The original purpose of a bill is established by the bill’s ‘earliest title and contents’ at the time the bill is introduced.”

So, messing with the title does not get around the constitutional restrictions.

As for this year’s bill, it’s hard to understand how a Senate substitute of more than 90 pages with a title citing 31 new sections fits the original purpose of a bill just two pages long and a title of “one new section relating to the participation of home school students in public school activities.”

Over the years, I’ve heard legislators argue that bloating a bill is just a tactic to put pressure on the other chamber to pass separate bills covering those subjects.

Essentially, that’s arguing the process doesn’t matter.

But in a concurring opinion to the 2012 Supreme Court decision, Judge Zel Fischer wrote that process does matter: “these constitutional limitations function in the legislative process to facilitate orderly procedure, avoid surprise, and prevent ‘logrolling.'”

I suspect legislative term limits have diminished institutional memory in the General Assembly about these historic court decisions governing what the legislature cannot do.

A few years ago, the Missouri House adopted a procedure that a bill cannot be taken up by the full chamber until the title is approved.

And, as I write this column, Senate reconsidered approval of the bloated education substitute to allow time to seek a compromise.

Yet, it’s unlikely any compromise will return the bill to its original single topic.

The limited in-class public school sessions because of COVID-19 has created stronger legislative support for alternatives to traditional public schools.

There is an irony to this issue. The sponsor of the expanded education substitute, Senate GOP Leader Caleb Rowden, represents the same Boone County that triggered the “Hammerschmidt” decision 27 years ago.

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Phill Brooks
Phill Brooks

Phill Brooks has been a Missouri statehouse reporter since 1970, making him dean of the statehouse press corps. He is the statehouse correspondent for KMOX Radio, director of MDN and an emeritus faculty member of the Missouri School of Journalism. He has covered every governor since the late Warren Hearnes.